The US federal government, and accordingly, the State governments all have Freedom of Information laws, which provide for the disclosure of public information. frmally in a government fails to respond to such requests there are long, expensive and administrative appeal processes which are of limited fruitfulness.

In NY and other states, there are advisory opinions which are issued by the public access oversight agency (in NY the Department of State) which sometimes refer to the Common Law right of access.

With a modest search effort I have been unable to unearth any treatises which address the Common Law right of access to government agency records. Does anyone have some pointers?

  • 1
    Could you drop some links to the NY advisory opinions?
    – bdb484
    Jun 22 '21 at 14:29
  • opengovernment.ny.gov has summaries and cases indexed.
    – mongo
    Jun 23 '21 at 16:27
  • May not be the best cite but: People v. Williams, 29 Misc.3d 1222, 920 NYS2d 243 (2010) - Videotapes of defendant engaged in conversations with undercover police officer were introduced into evidence and played for jurors in open court. On day after they were played, Newsday and New York Post requested copies. Claim that disclosure would deprive person of fair trial rejected; court cited constitutional and common law right of access to courtroom and presumption of access.
    – mongo
    Jun 23 '21 at 16:32
  • 1
    A bit of history, and also more on the common law restrictions being overridden by statute. rcfp.org/open-government-guide/new-york
    – mongo
    Jun 23 '21 at 16:38
  • 1
    OK. I see what's happening. Answering shortly.
    – bdb484
    Jun 23 '21 at 18:12

The common-law right of access to "agency" records is virtually nonexistent, and I know of no jurisdiction in the United States where invoking it would normally be successful. Instead, requesters must generally rely on the federal Freedom of Information Act or a state-level equivalent.

But this assumes that "agency records" refers to records held by executive-branch offices, such as police, prosecutors, mayors, schools, etc. I suspect that the modern references to the common law that you're seeing are generally referring to access to records held by the judiciary.

So if you're talking instead about court records, the common-law right of access remains a vital and vibrant doctrine. In American courts, the public has access to court proceedings and records under both the common law and the First Amendment:

The common-law right of access remains operative, even though there are statutory schemes governing the clerks who maintain judicial records. See, e.g., Bich v. Bich, 131 N.Y.S.3d 829 (2020) (denying sealing motion based on "deeply rooted constitutional and common-law right of access to proceedings as well as to court records"); People v Macedonio, 41 N.Y.S.3d 451 (2016) ("The common law right of access, however, applies to all publicly filed documents."); People v. Sullivan, 640 N.Y.S.2d 714 (1996) ("the notice and attachments are judicial documents, and therefore [**720] subject to the common-law presumption of public access.").

The article linked in DaleM's answer is a good resource for the largely defunct common-law right of access to executive-branch records. For information about the common-law right of access to judicial records, you could also check out RCFP's Open Courts Compendium.


The doctrine has fallen out of use

And may actually have been displaced by statute law - more likely Federally than at State level..

The growth of Freedom of Information statutes 1950s has put the common law basis for accessing government records on the back burner. The statutes provide clear (if not simple) pathways to the information rather than relying on arguing common law rights that are definitely there but ill-defined.

There are two common law rights in US law:

  • one inherited from English law which allowed applicants to apply for information if they had a direct need and for that to be weighed against the government’s and any other affected individual’s interest. Needless to say, in the 17th century, the government interest usually prevailed.
  • a First Amendment right to access judicial records.
  • The First Amendment right of access is not a common-law right. It has a distinct test and applies to distinct (though often overlapping) sets of records.
    – bdb484
    Jun 23 '21 at 6:06
  • Yet in the NY Court of Appeals (highest state court) they routinely cite common law. Since this is ongoing and recent, it appears that the NY Court of Appeals is a venue for some form of common law. As well, the chief judge is also the Chief Judge for common law matters (stated in the statutes for this state).
    – mongo
    Jun 23 '21 at 16:12
  • Back burner, or two burners? The former Chairman of the Committee on Open Government has stated many times that the common law right exists, and is independent of the statutory form.
    – mongo
    Jun 23 '21 at 16:30

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